ABA Section of Business Law

The great myth that plain language is not precise
Just say no to that lawyerly concept of: Why say something in five words when you
could say it in 10?

By JOSEPH KIMBLE

Occasionally, when you try to convert from legalese to
plain language, someone will come forward and assert that you made a mistake. You missed
something in the translation. You inadvertently changed the substance.

Never mind that translating legalese  like
translating a foreign language  is no easy matter. Never mind that, despite the
difficulties, good writers have successfully revised countless legal documents into plain
 or plainer  language. Never mind that many of these documents have involved
tough subjects like financial disclosure, corporate takeovers and disability insurance,
not to mention the Federal Rules of Appellate Procedure, Article 9 of the Uniform
Commercial Code, and various federal regulations issued since the presidential memorandum
on plain language.

Never mind that for every inadvertent change, you could
probably identify several ambiguities or uncertainties in the original document. Never
mind that the revised document will almost certainly be better  clearer and more
accurate  than the original. The fact remains that revising and clarifying a legal
document always involves some judgment and some risk.

But the risk is worth it, and writers should not be
dissuaded. Otherwise, the legal profession will never start to level the mountain of bad
forms and models that we have created. Well be stuck with the enormous
inefficiencies of traditional style and the frustration it causes. Change is hard, but
change has to come.

Let me offer what I think is a perfect object lesson
 a little story from Michigan.

The Michigan Bar Journal has a long-standing
column called "Plain Language," which I happen to edit. In the October 1999
column, an experienced corporate lawyer, David Daly, wrote an article called "Taming
the contract clause from hell." Daly undertook to straighten out a
mutual-indemnification clause, one in which each party indemnifies the other. (Ill
give you the full clause in a minute.) Another lawyer then wrote a letter to the editor of
the Bar Journal; the letter pointed to three possible "errors" in
Dalys revised version.

First, the revised version said that if the indemnified
party is sued and the indemnifying party assumes the defense, the indemnifying party
"may select counsel satisfactory to the other party." The original clause said
that "the indemnifying party shall be entitled . . . to assume the defense thereof
with counsel satisfactory to such indemnified party." Hmm . . . not much difference.
But presumably the intended sense is that the counsel must be satisfactory to the other
party. That could have been made clearer in both versions.

Second, the revised version did not say that until
assuming the defense, the indemnifying party must pay the indemnified partys legal
fees. The original said: "after notice . . . to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party . . . for any fees of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party . . . ." Now what does that mean  "in each case
subsequently incurred"? (And why the comma after expenses?) Omit in each case
and youll probably get the intended meaning. So that dividing point, when the
indemnifying party assumes the defense, should have been explicitly stated in the revised
version.

Third, the original clause said that after assuming the
defense, "the indemnifying party shall have no liability with respect to any
compromise or settlement thereof effected without its consent." Without going into
the reasons why, Daly dropped that provision as implicit in assuming the defense; and he
added a comparable provision for the indemnified party. He probably should have
explained the change. (A half-decent editor would have noticed and queried, but I
didnt.)

Although these three points in the letter to the Bar
Journal
cannot really be counted as errors, the points were well taken. The troubling
part of the letter, though, was this sentence: "As written, the turgid, repetitive
and (nearly) unreadable original has a paramount advantage over the concise, clearer
version: It gets the intended legal relations right." I hope no one will make too
much of statements like this. Please dont conclude that a legal writer has to choose
between precision and plain language  that legalese has the advantage of being more
precise, and plain language is less likely to get the substance right. Thats just
not true. In fact, its the biggest myth of all.

Lets back up and review this wondrous clause. (The
lines are numbered so I can refer to them later.)

8. Indemnification [Original]

1. (c) Promptly after receipt by an indemnified party
under

2. Section 1(g), 8(a) or 8(b) hereof of notice of the
commencement

3. of any action, such indemnified party shall, if a
claim in respect

4. thereto is to be made against an indemnifying party
under such

5. Section, give notice to the indemnifying party of the

6. commencement thereof, but the failure so to notify
the

7. indemnifying party shall not relieve it of any
liability that it may

8. have to any indemnified party except to the extent
the

9. indemnifying party demonstrates that the defense of
such action

10. is prejudiced thereby. If any such action shall be
brought against

11. an indemnified party and it shall give notice to the
indemnifying

12. party of the commencement thereof, the indemnifying
party shall

13. be entitled to participate therein and, to the
extent that it shall

14. wish, to assume the defense thereof with counsel
satisfactory to

15. such indemnified party and, after notice from the
indemnifying

16. party to such indemnified party of its election so
to assume the

17. defense thereof, the indemnifying party shall not be
liable to

18. such indemnified party under such Section for any
fees of other

19. counsel or any other expenses, in each case
subsequently

20. incurred by such indemnified party in connection
with the

21. defense thereof, other than reasonable costs of
investigation. If

22. an indemnifying party assumes the defense of such an
action, (i)

23. no compromise or settlement thereof may be effected
by the

24. indemnifying party without the indemnified
partys consent

25. (which shall not be unreasonably withheld) and (ii)
the

26. indemnifying party shall have no liability with
respect to any

27. compromise or settlement thereof effected without
its consent

28. (which shall not be unreasonably withheld). If
notice is given to

29. an indemnifying party of the commencement of any
action and it

30. does not, within ten days after the indemnified
partys notice is

31. given, give notice to the indemnified party of its
election to

32. assume the defense thereof, the indemnifying party
shall be

33. bound by any determination made in such action or
any

34. compromise or settlement thereof effected by the
indemnified

35. party.

In his article, David Daly summarized why this thing is
so poorly drafted:

 The sentences dont begin with the main, or
independent, clause.

 The sentences are too long.

 It uses too many words.

 It fails to break the material down into
subparts.

True enough, but theres more. For all its supposed
accuracy and precision, the clause is full of little holes that the dense surface hides.

One: Shall is misused throughout. Lawyers are
uneducable on shall, and we should give it up. Commentators and experts agree that
it should be used to impose a duty. It means "has a duty to." Essentially, if
you can substitute must, then the shall is correct. So why not just use must
to begin with?

At any rate, eight of the 11 shalls in the
indemnification clause are misused: The verb should be in the present tense. In lines
12-13, for instance, it should be is entitled. Luckily, none of the misuses creates
an ambiguity, but our professional mishandling of shall betrays us in more serious,
problematic ways. You can see for yourself by checking Words and Phrases  84
pages and more than 1,200 cases dealing with shall.

Two: In line 4, what does thereto refer to? The
action? One of the sections? This typifies the pseudo-precision of our beloved antique
jargon  words like thereto and herein and such.

Three: In lines 4-5 and 18, what does such Section
refer to? Does it refer to one section in particular or to any one of the three sections?

Four: Lines 11-13 seem to say that the indemnifying
party may participate in the defense only if the indemnified party gives notice. But why
should that right depend on whether notice is given?

Five: In line 13, the and should be or,
right? That is, the indemnifying party can participate in the defense without assuming the
defense.

Six: Lines 12-14 say that "the indemnifying party
shall be entitled . . . , to the extent that it shall wish, to assume the defense thereof
. . . ." Does this mean that the indemnifying party may somehow assume part of the
defense?

Seven: In lines 19-20, the in each case subsequently
incurred
should be in this case, right? Better yet, omit in each case.

Eight: In lines 23, 27 and 34, whats the
difference between "compromise" and "settlement"? Is this just another
legal doublet, like null and void? Or do you need both terms?

Nine: Lines 30-31 say "within 10 days after the
indemnified partys notice [of the action] is given." Shouldnt that be 10
days after notice is received?

Ten: Lines 28-35 set a practical limit of 10 days on
giving notice to assume the defense. Is there any time limit on when the indemnifying
party can decide to participate in the defense? Apparently not.

There may be more questions, but thats enough to
bring home the point: When you redraft in plain language, you inevitably uncover gaps and
uncertainties in legalistic writing. The fog lifts, the drizzle ends and the light shines
through. So Ill say it again: Plain language is usually more precise than
traditional legal style. The imprecisions of legalese are just harder to spot.

David Dalys improved plain-language version of the
indemnification clause can easily be tweaked to take into account the comments in the
letter to the editor. You could do it like this:

8. Indemnification [Revised]

8.3 Legal Action Against Indemnified Party

A. Notice of the Action

A party that seeks indemnification under Section
1(g), 8(a), or 8(b) must promptly give the other party notice of any legal action. But a
delay in notice does not relieve an indemnifying party of any liability to an indemnified
party, except to the extent the indemnifying party shows that the delay prejudiced the
defense of the action.

B. Participating in or Assuming the Defense

The indemnifying party may participate in the
defense at any time. Or it may assume the defense by giving notice to the other party.
After assuming the defense, the indemnifying party:

(1) must select an attorney that is satisfactory to the
other party;

(2) is not liable to the other party for any later
attorneys fees or for any other later expenses that the other party incurs, except
for reasonable investigation costs;

(3) must not compromise or settle the action without the
other partys consent (but the other party must not unreasonably withhold its
consent); and

(4) is not liable for any compromise or settlement made
without its consent. [Or omit this item as obvious?]

C. Failing to Assume the Defense

If the indemnifying party fails to assume the
defense within 10 days after receiving notice of the action, the indemnifying party is
bound by any determination made in the action or by any compromise or settlement made by
the other party.

The choice is not between precision and plain language.
Plain language can be at least as precise  or as appropriately vague  as
traditional legal writing. The choice is between perpetuating the vices of four centuries
and finally breaking free, between inertia and advancement, between defending the
indefensible and opening our minds.

Lawyers continue to write in a style so impenetrable
that even other lawyers have trouble understanding it  as the debate over the
indemnification clause once again confirms. What would we think of engineers or doctors if
they regularly could not understand what another engineer or another doctor had written?
Do you suppose that the publics impression of lawyers is in any way influenced by
our strange talk and even stranger writing?

I know that, in law, change is hard and progress is
slow. But when it comes to legal drafting  contracts, wills and trusts, statutes,
ordinances  progress is glacial. Why so?

One possible explanation is that legal drafters are
blindly overconfident. They believe that because their forms have been around a long time,
the forms must be tried and true  a grossly exaggerated notion.

Or perhaps the explanation is that legal drafters
recognize that everyone elses drafting is poor, but they cant quite see the
same deficiencies in their own work. Now thats what youd call a severely
limited critical sense. Yet Bryan Garner, our leading authority on legal writing, offered
this evidence in the Winter 1998 issue of The Scrivener (published by Scribes):

In my CLE seminars on legal drafting, I routinely ask
audience members to answer two questions:

(1) What percentage of the legal drafting that you see
is of a genuinely high quality?

(2) What percentage of legal drafters would claim to
produce high-quality drafting?

Although theres some variation within any
audience, the consensus is quite predictable: the lawyers say that 5 percent of the legal
drafting they see is of a genuinely high quality, and that 95 percent of the drafters
would claim to produce high-quality documents.

Theres a big gap there. It signals that
theres still a great deal of consciousness-raising needed within the profession
 especially on the transactional side.

Garner asserts that, in general, while litigators are
very interested in trying to improve their writing, transactional lawyers are not.

In the end, the shame for legal writing is not just that
even lawyers have trouble translating it. The shame is that legal writing so often and so
unduly needs translating because lawyers dont write in plain language to begin with.

References

David Mellinkoff, The Language of the Law 375
(1963) ("[T]hat vast storehouse of judicial definitions known as Words and Phrases
. . . is an impressive demonstration of lack of precision in the language of the law. And
this lack of precision is demonstrated by the very device supposed to give law language
its precision  precedent.").

Centre for Plain Legal Language, Law Words: 30 Essays
on Legal Words & Phrases
(Mark Duckworth & Arthur Spyrou eds. 1995) (showing
that a number of legal terms, like force majeure and right, title and interest,
are not precise or not required by precedent).

Mark Adler, "Tried and tested: The myth behind the
cliché," Clarity No. 34, Jan. 1996, at 45 (showing that a typically verbose
repair clause in a lease is not required by precedent).

Benson Barr et al., "Legalese and the myth of case
precedent," 64 Mich. B.J. 1136 (1985) (finding that less than 3 percent of the
words in a real-estate sales contract had significant legal meaning based on precedent).